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Software Licence Terms & Conditions - Shiftware

The software accessible on the website and its associated Shiftware application and related services, websites and tools (together the Software) is owned and operated by QEShiftware Pty Ltd ABN 89 670 528 328 (Provider). These Software Licence Terms and Conditions (Terms and Conditions) govern access to and use of the Software by you, the individual using the Software, and any legal entity on whose behalf you are acting (Client).

Please carefully read these Terms and Conditions. By clicking “I agree” (or a similar button) that is presented to you in relation to these Terms and Conditions, or by using or accessing the Software, you agree to be bound by these Terms and Conditions.

If a person is agreeing to these Terms and Conditions on behalf of the Client, the person agreeing on behalf of the Client warrants that it has the irrevocable authority and agreement of the Client to be bound by these Terms and Conditions.

These Terms and Conditions may be updated by the Provider from time to time, and the updated Terms and Conditions will apply from the date they are published on the Website or Software. Each time the Client uses the Software they should revisit these Terms and Conditions.

1. Definitions and Interpretations

  1. Definitions In these Terms and Conditions unless inconsistent with the context or subject matter the following terms have the corresponding definitions
    1. Account: an account enabling the Client and an Authorised User to access and use the Software.
    1. ACL: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
    2. Address for Service: the email address for each party as advised by a party to the other party in writing from time to time. For the Client, this will be the email address the Client subscribed on the website with.
    3. Applicable Laws: any laws governing or affecting the arrangements contemplated by these Terms and Conditions.
    1. Authorised User: such persons authorised by the Client to access the Software in connection with the Client’s subscription to the Software.
    2. Client Data: all data, files, works and materials posted on the Software by the Client (or Authorised Users), transmitted by the Software at the instigation of the Client (or Authorised Users), or supplied by the Client (or Authorised Users) to the Provider for transmission by the Software, but excludes the Software Materials.
    3. Commencement Date: the date the Client signs up and subscribes to use the Software.
    4. Confidential Information: of a party means all information (in any form):
      1. relating to or arising from the Services (including the Client Data for the Client);
      2. that concerns a party’s business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, client lists, pricing, and other business processes); and
      3. includes these Terms and Conditions;
        but does not include information that:
      4. is or becomes independently developed or known by the other party through no breach of these Terms and Conditions by that party; or
      5. becomes publicly available without breach of these Terms and Conditions.
    1. Corporations Act: the Corporations Act 2001 (Cth).
    2. End User Licence Agreement: the End User Licence Agreement which applies to all Authorised Users of the Software, a copy of which is accessible on the Website, as amended by the Provider from time to time.
    3. Fee: any fees payable by the Client to the Provider to use the Services in accordance with clause 6, including the Licence Fee and any other fees and charges payable by the Client to the Provider under these Terms and Conditions.
    1. Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control including (but not limited to):
      1. strikes, lock-outs or other industrial action;
      2. civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
      3. fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic (including COVID-19), health emergencies, disease, or other natural disaster;
      4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
      5. interruption or failure of utility services (including the inability to use public or private telecommunications networks);
      6. interruption of networks or third party services (including telecommunication or web services); and
      7. the acts, decrees, legislation, regulations or restrictions of any Government Agency, however does not include a lack of funds.
    1. Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
    2. GST Law: has the same meaning as GST Law in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
    3. Insolvency Event:
      1. a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
      2. a liquidator or provisional liquidator is appointed in respect of a person;
      3. any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
      4. any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
      5. any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
      6. a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
    4. Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include without limitation:
      1. all rights in all applications to register those rights;
      2. all renewals and extensions of those rights; and
      3. all rights in the nature of those rights, such as moral rights.
    1. Licence Fee: the licence fees payable by the Client for access to the Software for paid subscriptions (as applicable).
    1. Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
    1. NDIS Participants: those NDIS participants that are granted read-only access to the Software under the Client’s subscription.
    2. Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.
    3. Policy: means any policy of the Provider in place from time to time.
    4. Privacy Legislation: means the Privacy Act 1988 (Cth), including Australian Privacy Principles, and the guidance and codes of practice issued by the Office of the Australian Information Commissioner from time to time.
    5. Privacy Policy: means the privacy policy of the Provider as accessible on the Software and the Website.
    1. Related Entity: has the meaning given in section 9 of the Corporations Act.
    1. Services: the provision of the Software and any ancillary services provided by the Provider which are not the subject of another agreement between the Client and the Provider.
    2. Software: means the software provided by the Provider as described above.
    3. Software Materials: all materials, documentation and information (whether reduced to written form or otherwise) provided to the Client by the Provider at any time.
    1. State: Victoria, Australia.
    1. System: means the Client’s system and IT infrastructure that will host the Software, and for purposes of the mobile application, means mobile infrastructure (such as mobile or tablet).
    2. Term: means the term of these Terms and Conditions, commencing and expiring in accordance with its terms.
    3. Terms and Conditions: these Software Licence Terms and Conditions as amended from time to time.
    4. Website: the Provider’s website accessible at shiftware.com.au.
  1. Interpretation In these Terms and Conditions the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
    1. Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
    2. References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms and Conditions.
    3. References to parties are references to the parties to these Terms and Conditions.
    4. References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
    5. Words denoting the singular include the plural and words denoting the plural include the singular.
    6. Words denoting any gender include all genders.
    7. The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.
    8. A reference to a body (other than a party to these Terms and Conditions), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
    9. A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
    10. A reference to a law includes:
      1. legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
      2. any constitutional provision, treaty or decree;

      3. any judgment;
      4. any rule or principle of common law or equity,
      and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
    1. Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
    2. Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
    3. No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
    4. If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
    5. A reference to time is a reference to time in the capital city of the State.
    6. A reference to a day is a reference to a day in the capital city of the State.
    7. A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
    8. If any act is required to be performed under these Terms and Conditions by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
    9. If any act is required to be performed under these Terms and Conditions on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
    10. A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
    11. Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
    12. Where these Terms and Conditions are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
    13. These Terms and Conditions include all schedules, annexures, appendices, attachments and exhibits to it.
    14. A reference to writing or written includes email.
      1. Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2. Using the Software

  1. The Software is an all-in-one solution for caregivers designed to meet the needs and requirements of support providers.
  2. The Client’s Authorised Users may access and use the Software in accordance with these Terms and Conditions and the End User Licence Agreement.
  3. In inputting Client Data on the Software, the Client acknowledges and agrees that they are authorised to disclose such information and that the Provider, without the Provider taking any further steps required by any Applicable Law or under any Privacy Legislation, is able to collect, use and disclose such Client Data for the purposes described in the Provider’s Privacy Policy and these Terms and Conditions. Please review clause 19.2 with respect to privacy obligations.

3. Term of Licence

  1. Subscription to the Software
    1. These Terms and Conditions shall commence on the Commencement Date and continue until terminated in accordance with their terms.
    2. Subscription to the Software will be handled on the Provider’s Website, or by other means as approved by the Provider. These Terms and Conditions will apply whether the Client subscribes to the Software via the Website or any other approved method.
    3. The Provider offers access to the Software through a free startup plan which provides standard access limited to eight Authorised Users, as well as a paid subscription plan which gives access to additional Authorised Users and services/functions on the Software. The full details of the plans, including the subscription term, renewal dates and associated Fees will be as published on the Website at the time the Client subscribes.
    4. The Client’s licence to use the Software will run from the Commencement Date and continue for the initial subscription term set out on the Website, following which it will automatically continue to renew for equivalent periods unless the Client cancels their subscription prior to the renewal date.
    5. For paid subscriptions the Client authorises the Provider to store the Client’s payment method details and to automatically charge the Fee in advance for each renewed term. The subscription will automatically renew in order to avoid interruption to the Services and the Client acknowledges and agrees that this is fair and reasonable.
    6. The Client may upgrade or downgrade their subscription plan at any time on giving notice to the Provider or by following the prompts on the Software. If the Client downgrades from a paid subscription to a free Account, then the downgrade will take effect from the next billing cycle date, and there will be no pro-rata refund. On expiry of a paid subscription plan the Client acknowledges that it will no longer have access to any features that are accessible to paid subscribers of the Software (including a limitation on the number of Authorised Users with access). If the Client chooses to go from a free subscription to a paid subscription the billing cycle will start on the date the Client makes the change.
    7. The Client may terminate their access to the Software and these Terms and Conditions at any time on giving one months’ written notice to the Provider.

4. Licence

  1. Grant of Licence Subject to the Client’s compliance with these Terms and Conditions, the Provider hereby grants to the Client a non-exclusive, non-transferable, non-assignable and revocable licence to use the Software during the term of the Client’s subscription in accordance with these Terms and Conditions.
  2. Licence access & limitations
    1. The licence granted to the Software is granted to the Client and its Authorised Users only and is subject to any restrictions and limitations of their selected subscription plan as specified on the Website (or as modified in accordance with these Terms and Conditions) (Usage Rights). In relation to Usage Rights, the Client acknowledges and agrees that:
      1. for free subscription plans, up to eight Authorised Users are permitted access;
      2. for paid subscription plans a separate Licence Fee is payable for each additional Authorised User (that exceeds the eight Authorised User limitation), the separate Licence Fee is as stated on the Website;
      3. the Client is permitted to grant access to NDIS Participants on a read-only access restricted as set out on the Software or otherwise advised by the Provider;
      4. the maximum number of Authorised Users that it permits to use the Software must not exceed the number of Authorised Users that it has purchased a licence for from time to time; and
      5. it will ensure that each Authorised User shall be issued its own Account which it must keep confidential.
    2. All Authorised Users of the Software must agree to and will be bound by the End User Licence Agreement, and the Client is solely responsible for ensuring that they do so, and is solely responsible for all actions and omissions of all Authorised Users (and any other person that uses the Client’s Account). In the event the Client, or any Authorised Users do not agree to the End User Licence Agreement, they must not use the Software.
    3. The Client is solely responsible for ensuring its Authorised Users comply with the provisions of these Terms and Conditions, and a breach by any of the Authorised Users of these Terms and Conditions, will be deemed to be a breach by the Client.
    4. The Client is strictly prohibited from granting access to any other person (except as permitted under these Terms and Conditions) and must ensure that no competitor of the Provider gains access to or use of the Software.
  3. Auditing of use
    The Client acknowledges and agrees that the Provider has the right to audit the Client’s use of the Software. In the event that an audit reveals that the Client has exceeded any licence limitations specified in these Terms and Conditions, the Client must pay to the Provider the additional Licence Fees the Provider would have otherwise charged the Client had the Provider known the licence limitations were exceeded.
  1. Access restrictions
    1. Except to the extent expressly permitted in these Terms and Conditions, the licence granted by the Provider to the Client under clause 4.1 is subject to the following prohibitions:
      1. the Client must only sub-license its right to access and use the Software to Authorised Users in accordance with these Terms and Conditions;
      2. the Client must only use the Software as it is intended;
      3. the Client must not directly or indirectly copy, reproduce, share, republish, frame, download, transmit, distribute, sell, reverse engineer, decompile, translate, alter, modify, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software or any software, documentation or data related to the Services (except to the extent expressly permitted by Provider or authorised within the Software);
      4. the Client must not remove any proprietary markings or notices of any proprietary rights set forth in the Software;
      5. the Client must not create derivative works based on the Software (except to the extent expressly permitted by Provider or authorised within the Software); and
      6. the Client must not make any alteration to the Software.
    2. The Client acknowledges that the licence granted does not grant the Client any right to discover, or request information relating to the operation, structure or underlying source and object code of the Software. Such information is confidential to the Provider, and the Client is strictly prohibited from accessing or attempting to access such information.

5. Account

  1. In order to use the Software, the Client (and each Authorised User) must have their own Account. The Provider will allocate the number of Accounts as required by the Client to be accessed by Authorised Users in accordance its subscription. The Client will be granted access to one administrator-level Account where they will be able to assign access to Authorised Users.
  2. In using the Account:
    1. the Client (and each Authorised User) must not use false or misleading information and must update their details should they have changed from the last time they used the Software;
    2. the Client (and each Authorised User) must follow any password policies made available by the Provider from time to time (and as are stated on the Software from time to time);
    3. the Client (and each Authorised User) is responsible for the security of its username and password and the Provider will assume that anyone using the Client’s (and each Authorised User’s) Account is authorised to do so by the Client and the Client is responsible for their actions. Under no circumstances will unauthorised access and use of the Client’s Account reduce the Client’s liability to the Provider; and
    4. the Client must notify the Provider immediately if it becomes aware of any unauthorised use of its Account or other security breach.

6.Fees

  1. Licence Fees
    1. The Licence Fee payable paid subscriptions and any other charges the Client may incur in connection with their use of the Software will be as stated on the Website at the time the Client subscribes to the Software or as quoted by the Provider to the Client.
    2. If the Client is on a paid subscription then the Client must pay the Licence Fee in advance during the term of the subscription (with the first payment due on or before the Commencement Date, subject to any free trial periods, and renewal payments due on the renewal date).
    3. The Client may elect to participate in certain add-ons or functionality of the Software which must be paid for in accordance with these Terms and Conditions.
    4. In the Provider’s sole discretion, the Provider may offer free or discounted pricing for various Services accessible on the Software. The terms of such use and any limitations will be as specified by the Provider at the time the Service is accessed. If the Provider offers the Client a trial program, once the terms of that trial program have expired the Client agrees that the Provider’s normal billing rates shall apply. The Client agrees to comply with any restrictions or limitations placed on their Account during any free or discounted pricing term.
  2. Payment method
    1. Payment of the Fees is to be made via the payment method specified by the Provider on the Website or the Software.
    2. If the parties have agreed that the Fees will be paid via a direct debit arrangement, then the Client irrevocably authorises the Provider to debit the Fees during the term from the Client’s nominated bank account/credit card/debit card (Debit Account), on or about the due date for payment without notice to the Client. The Client must ensure that the Debit Account details are up to date at all times and the Client must notify the Provider in the event that the details are no longer current, and provide replacement details. The Client also irrevocably authorises the Provider to deduct all other fees and charges payable by the Client to the Provider under these Terms and Conditions from the Client’s nominated Debit Account. The Client warrants that the Client is the owner or has the right to use any Debit Account details provided to the Provider. Default charges will apply in the event that the Client stops the authority to charge the Debit Account without acceptance by the Provider. Insufficient funds in the Debit Account will also attract a fee.
  3. Overdue Payments
    1. Where any part of the Fees or other monies payable by the Client under or in connection with these Terms and Conditions are not paid by its due date, the Provider reserves the right to:
      1. suspend the Client’s access (including the access of its Authorised Users) to the Software until all overdue amounts (including interest) are received by the Provider in cleared funds; and
      2. charge the Client interest on the overdue amount at the rate of 12% per annum accruing daily and compounding monthly until payment is received in full.
    2. The Client acknowledges that the Provider may not grant the Client access to the Software until they have received payment of all required Fees payable in cleared funds.
  4. Increase in fees The Provider reserves the right to increase the Fees on each anniversary of the Commencement Date during the Term, by giving two months’ written notice. If the Client does not agree to such increase, they may terminate these Terms and Conditions in accordance with these terms.
  5. General
    1. The Client must pay all Fees and other amounts without set-off or claim under any circumstance including if a dispute exists.
    2. All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of GST, which will be added to those amounts and payable by the Client to the Provider.
    3. Depending on the method of payment the Client uses to pay the Fees, additional charges may be incurred (such as a small credit card processing charge).
    4. All amounts paid by the Client are non-refundable to the extent permitted by law.

7.Client obligations

  1. Security and access
    The Client:
    1. is solely responsible for ensuring that the Client’s System meets all minimum specifications to operate the Software effectively, as specified by the Provider from time to time;
    2. is solely responsible for backups;
    3. must ensure that the Client’s Systems are protected at all times from misuse, damage, destruction or any form of unauthorised use.
  2. Use of Software
    1. The Client acknowledges and agrees that it will only use the Software in accordance with these Terms and Conditions and any Policy.
    2. The acts and omissions of any Authorised User are deemed to be the acts and omissions of the Client and the Client is liable for its Authorised Users and must ensure that they comply with the Client’s obligations in respect of the use of the Software.
    3. The Client’s use of the Software and the Services, including the information submitted on the Software and the Services, must not (and they must ensure that its Authorised Users use and information must not):
      1. be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
      2. be in any manner which could damage, disable, overburden, or impair the Software or interfere with any other party’s use and enjoyment of this Software;
      3. be in any manner to phish or deceptively obtain information of other users on the Software;
      4. impersonate or otherwise misrepresent the Client’s identity or affiliation with any other person or entity;
      5. be for purposes of junk, obscene, indecent, offensive or threatening electronic mail or electronic mail in contravention of the Spam Act 2003 (Cth) or to attract, lure or illegally obtain information from other users on the Software;
      6. infringe any third party’s rights or violate any Applicable Laws;
      7. contain any viruses or similar which could affect the integrity, operation or security of the Software;
      8. create liability for the Provider or cause the Provider to lose (in whole or in part) the services or custom of our internet service provider, other clients, users or other suppliers;
      9. damage the credibility or integrity of the Software or the Provider, or dilute, tarnish, or otherwise harm the Provider’s brand in any way; or
      10. interfere with or disrupt the Software, or disobey any requirements, procedures, policies, or regulations of networks connected to the Software.
    4. Whilst using the Software and the Services, the Client must not, and must ensure that its Authorised Users do not:
      1. attempt to gain unauthorised access to the Software or computer systems or networks connected to the Software through any means;
      2. commit forgery (or attempted forgery), harass any individual, or harm minors in any way;
      3. collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses
      4. breach or violate any of the Provider’s policies;
      5. falsify or delete any attributions, legends, or other proprietary designations of origin or source of any content of the Software;
      6. copy, store or otherwise access or use any information contained on the Software for purposes not expressly permitted by these Terms and Conditions;
      7. use the Software for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Software, or in a manner that falsely implies the Provider’s endorsement, partnership or otherwise misleads others as to the Client’s affiliation with the Provider;
      8. attempt to circumvent payment of any fees in anyway;
      9. tamper with, hinder the operation of or make unauthorised modifications to the Software or any part thereof;
      10. damage or modify the Software or the Software or any part thereof; or
      11. circumvent, disable or otherwise attempt to interfere with any security related features.

8.Software

  1. Software Updates
    1. The Provider is under no obligation to provide updates or new releases of the Software to the Client at any time.
    2. The Provider does not warrant that the Software will be updated by the Provider during the Term.
  2. Maintenance
    1. The Provider reserves the right to provide general maintenance services to the Software including updating and upgrading the Software during the Term as the Provider considers necessary from time to time. The Client acknowledges and agrees that the Software may occasionally be unavailable during periods of planned or unscheduled critical and urgent maintenance or updates or upgrading.
    2. The Provider will use reasonable endeavours to provide the Client with the following notice in the event any maintenance services will or are likely to result in any downtime to the Software:
      1. if the maintenance services are critical, urgent and it is not reasonably practicable for the Provider to provide any notice – No notice will be provided;
      2. otherwise – the Provider will endeavour to provide at least 5 business days’ notice.
  3. Availability & No Service Levels The Provider shall use commercially reasonable efforts to maintain the availability of the Software to the Client but provides no guarantee as to the availability and/or the uptime of the Software. The Provider will not be in breach of these Terms and Conditions if it fails to provide any level of availability, nor will it be liable for any Loss suffered by the Client or any other person in this regard.
  4. End of Life Versions of the Software may be deemed “end of life” at the sole discretion of the Provider. Versions of Software that are deemed “end of life” by the Provider do not include any maintenance or support services. If the Client continues to use “end of life” Software, the Client accepts all liability for any Loss that may occur in connection with their use of the “end of life” Software and uses it solely at their own risk. For the avoidance of doubt, the Provider will not be liable for any Loss as a result of the Client’s use of “end of life” Software.
  5. Variations and amendments The Provider reserves the right to make changes to the Software which are necessary to comply with Applicable Laws, government agency requests or safety requirements.
  6. Third Party Integrations
    1. The Client acknowledges that the Software (as applicable such as for mobile applications) will be running on the Client’s Systems and that such Systems are beyond the Provider’s reasonable control.
    2. In the event that:
      1. the Client’s System is experiencing issues or downtime;
      2. third-party systems or infrastructure upon which the Software is managed, is experiencing issues or downtime; or
      3. the Client is required to maintain an account with that third party service and fails to do so,
      this may also cause the Software to become unavailable and the Provider accepts no responsibility for any Losses or notification in this regard.
    3. Where information is transferred to a third party service, the Provider will not be liable for any Loss arising from the use of that information by that third party service.
    4. Where information stored in the Software is provided by or transferred from a third party service, the Provider will not be liable for any Loss arising from the errors or omissions from the data provided by third party, or from the unavailability of the third party’s service.
    5. For the avoidance of doubt, the Provider has no obligations with regards to the Software or the Services to assist or provide any services to any third party. Any requests to or from third parties are outside of the scope of the licence granted under these Terms and Conditions.

9. Intellectual Property Rights

  1. The Software and Software Materials
    1. The Provider shall at all times retain all title, rights and interest in and to the Software and Software Materials including:
      1. the Intellectual Property Rights subsisting in each;
      2. any customisations of, modifications to, and additions to, the Software and Software Materials to suit the Client’s individual needs;
      3. information or data, source codes and other information technology relating to or connected with the Services or Software Materials;
      4. marketing information relating to or connected with the Software or Software Materials; and
      5. technical information, including trade secrets, drawings, plans, encryptions, codes and product descriptions and information relating to or connected with the Software,.
      however, excludes the Client Data
    2. No right, title and interest in any of the Software and Software Materials is transferred or granted to the Client except so far as expressly stated in these Terms and Conditions. The Client must not use the Software in any way that is inconsistent with the Provider’s ownership or that is otherwise in contravention of these Terms and Conditions.
    3. For the avoidance of doubt:
      1. the Client has no right to access the software code (including object code, intermediate code, source code of the Software, either during or after the Term; and
      2. the Client must not publish the collation of data, generated from the Software.
  2. Client Data
    1. Subject to the limitations of the Software as described in clause 10, the Client (or its appropriate licensors) shall at all times retain ownership of the Client Data including the Intellectual Property Rights subsisting in it.
    2. The Client is solely responsible for inputting any Client Data. The Provider may, in its absolute discretion, refuse to accept the input of Client Data to the Software. The Client agrees that the Provider shall not be liable to the Client for any Loss or damage the Client may suffer as a result of this.
    3. The Client hereby grants to the Provider an irrevocable, worldwide, perpetual, transferable, non-exclusive license to use, communicate, display, copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions, together with the right to sub-license these rights to:
      1. its hosting, connectivity and telecommunications service providers; and
      2. third party services that are integrated with the Services, to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under these Terms and Conditions.
    4. The Client also grants the Provider an irrevocable, non-exclusive licence to use the Client Data as non-personally identifiable data in aggregated and blinded formats where the data provides no identifying, referencing or implication of an association with the Client, for the purposes of:
      1. display on the Software (for benchmarking and reporting); and
      2. the Provider’s own analytical purposes, including to measure any metrics associated with the Client’s use of the Software.
    5. The Provider warrants that:
      1. it will only use the Client Data as set out in these Terms and Conditions and the Provider’s Privacy Policy in place from time to time; and
      2. it will not sell, rent or lease the Client Data to any third party.
    6. The Client warrants to the Provider that:
      1. the Client owns or has the necessary licenses to transmit such Client Data through the Software and that any Client Data provided will not infringe any third party rights (including intellectual property or confidentiality obligations) nor give rise to a liability to make royalty or other payments to a third party;
      2. the Client Data will not:
        1. breach the provisions of any law, statute or regulation;
        2. give rise to any cause of action against the Provider, in each case in any jurisdiction and under any applicable law.
    1. The licences granted pursuant to this clause 9 survive termination of these Terms and Conditions.

10. Restriction of access to Client Data

  1. Subject to the other terms of this clause, in the event that:
    1. the Client fails to pay any part of the Fees or other monies payable by the Client under or in connection with these Terms and Conditions by its due date; or
    2. these Terms and Conditions and/or the Client’s access to the Software is suspended, restricted or terminated; or
    3. the Client closes their account or their subscription or terminates these Terms and Conditions, the Client’s access to the Client Data will be immediately revoked and the Client’s Account will become inactive. For the avoidance of doubt the Client will have no access to the Client Data (including access to download any Client Data that is available for them to download) while the Client’s Account is inactive.
  2. Prior to termination of these Terms and Conditions or the Client’s Account otherwise becoming inactive, the Client is solely responsible for downloading any Client Data that is available for download from the Software. Only the Client Data that is made available in the format as specified on the Software may be downloaded. The Provider does not guarantee, represent or warrant that all of the Client Data will be able to be downloaded as not all Client Data is made available for download. The Provider will not be providing a download of the Client Data once the Client’s Account becomes inactive.
  3. Following termination of the Client’s access to the Software the Provider reserves the right to delete all Client Data from the Software and is under no obligation to provide any notice or copies of such Client Data to the Client prior to its deletion.

11. Warranties

  1. The Client warrants:
    1. that it has the legal right and authority to enter into these Terms and Conditions and to perform its obligations under these Terms and Conditions;
    2. that it has not relied upon any representations, warranties or conditions offered or made by or on behalf of the Provider except to the extent expressly set out in these Terms and Conditions.
  2. All of the parties’ warranties and representations in respect of the subject matter of these Terms and Conditions are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of these Terms and Conditions will be implied into these Terms and Conditions or any related contract.

12. Disclaimer

  1. The Provider provides the Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client relies on the Services at its own risk and is solely responsible and liable for how they use the Services.
  2. Without limiting clause 12.1, the Client acknowledges and agrees that:
    1. the Provider does not guarantee continuous, uninterrupted or secure access to its Software or that any information provided by the Provider is up to date and accurate;
    2. the Provider does not warrant that the use of the Software will result in the Client or its Authorised Users achieving any specific result;
    3. the Client should make their own enquiries and review and obtain their own independent advice in relation to the Software to ensure that it is the correct software for their purpose;
    4. the Provider makes no representations about the suitability of the Software for any purpose, or that the Software and use of the Software by the Client is compliant with Applicable Laws;
    5. the Provider makes no guarantees that there will be no loss or corruption of Client Data at any time;
    6. whilst best endeavours will be made to ensure the accuracy of the reports and any output provided by the Software, the Provider cannot guarantee the accuracy, currency, suitability, reliability and availability of the Software and any content gained within;
    7. the information provided on and in the Software is general information and is not in the nature of financial, legal or any form of advice. The Client should obtain advice before making any decision based on the Software;
    8. the Provider reserves the right to withdraw, or amend, update or change the functionality or content of the Software at any time, without notice; and
    9. complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

13. Technical disclaimers

  1. Data Backup The Provider is not responsible for providing any data backup services and the Provider makes no guarantees that there will be no loss or corruption of Client Data at any time. Unfortunately, data loss happens and the Client holds harmless and releases the Provider for any Loss the Client suffers in the event that the Client Data is lost.
  2. IT Infrastructure The Provider is only responsible for the Software that it supplies to the Client. The Provider is not responsible for the Client’s Systems or any external components.
  3. Data Security The Provider will maintain appropriate technical and organisational measures to protect the security of the Client Data. The Provider does not guarantee that unauthorised third parties will never be able to defeat those measures to access the Client Data for improper purposes. The Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, confidential information and Client Data. Accordingly, any Client Data that is transmitted by the Client is transmitted solely at the Client’s risk. The Client is solely liable for their Client Data.

14. Limitation of Liability

  1. Subject to the other terms of this clause, the Provider excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
  2. Without limitation to clause 14.1, to the extent permitted by law, the Provider excludes all liability to the Client and Authorised Users and/or anyone else for Losses arising in any way in connection with the Software or its use and/or the Services and/or these Terms and Conditions, including but not limited to Losses suffered as a result of:
    1. non-performance of the Software, including any downtime of the Software;
    2. any reliance on the Software (or any information provided from the Software);
    3. any incorrect data entry or information made by the Client or Authorised Users on the Software;
    4. any incorrect data or content, errors, mistakes or inaccuracies on the Software;
    5. any loss or corruption of Client Data at any time;
    6. any defects, errors and bugs in the Software;
    7. any unauthorised access to or use of the Software;
    8. any misuse, abuse or alterations to the Software by the Client;
    9. any interruption or cessation of transmission to or from the Software;
    10. the Client’s acts or omissions, including the Client’s wilful damage, negligence or abnormal working conditions;
    11. an event outside of the Provider’s reasonable control;
    12. any actions or inactions of a third party (except for the Provider);
    13. the Client’s System, applications, equipment, software or other third party equipment and software;
    14. any viruses, trojan horses or other harmful code or communications which may be transmitted to or through the Software by any third party; and/or
    15. loss of privacy and confidential information.
  3. Subject to the other terms of this clause, the Provider’s maximum aggregate liability to the Client for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by the Provider of these Terms and Conditions however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual Fees paid by the Client to the Provider under these Terms and Conditions in the one-month period preceding the matter or event giving rise to the claim
  4. Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services, to the extent that the ACL applies to the Services.
  5. If the Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Provider’s total liability to the Client for that failure is limited to, at the option of the Provider the resupply of the Services or the payment of the cost of resupply.
  6. The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
  7. Without limitation to the other terms of this clause, the Provider excludes any liability to the Client, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms and Conditions.
  8. Notwithstanding anything else in this clause, the Provider’s liability will be reduced to the extent the loss or damage is caused by or contributed to by the Client, the Client’s Authorised Users or the Client’s employees, agents or contractors.
  9. Where the Client is or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under these Terms and Conditions, the Client must:
    1. use its best endeavours to recover that sum before making the claim;
    2. keep the Provider at all times fully and promptly informed of the conduct of such recovery; and
    3. reduce the amount of the claim to the extent that sums are recovered.
  10. The Provider will not be liable for any claim under or in relation to or arising out of these Terms and Conditions including a breach of any warranty unless:
    1. the Client has first made a claim under any insurance policy held by the Client that may cover that claim; and
    2. that claim has been denied in whole or partly by the relevant insurer.
  11. If the Client recovers any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and Conditions and that amount is less than the loss or damage incurred by the Client, the amount of the shortfall will be the amount of the Client’s loss for the purposes of these Terms and Conditions.

15. Indemnity

  1. Except to the extent caused by the breach of these Terms and Conditions by the Provider, the Client indemnifies and releases the Provider, and its officers, directors, shareholders, employees, consultants, agents, and related bodies corporate from and against any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by the Provider arising out of or in connection with:
    1. the Client or the Client’s Authorised User’s use of the Services;
    2. the supply, suspension, restriction or cancellation of the Client or the Client’s Authorised User’s access to the Software in accordance with these Terms and Conditions;
    3. the Client or the Client’s Authorised User’s breach or negligent performance or non-performance of these Terms and Conditions;
    4. the Client or the Client’s Authorised User’s violation of any applicable law;
    5. any claim made against the Provider and/or the Client and/or its Authorised Users by a third party arising out of or in connection with these Terms and Conditions, to the extent that such claim arises from the act or omission of the Client and/or its Authorised Users or out of the breach, negligent performance or failure or delay in performance of these Terms and Conditions by the Client;
    6. any claim made against the Provider for actual or alleged infringement of a third party’s rights arising out of or in connection with the Client Data (including Privacy Legislation); and/or
    7. the enforcement of these Terms and Conditions by the Provider.
  2. The Client must make payments under this clause:
    1. in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
    2. in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
  3. It is not necessary for the Provider to incur expense or make payment before enforcing a right of indemnity under this clause.
  4. The indemnities in this clause:
    1. are continuing obligations of the Client, independent from its other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
    2. are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting the liability of the Client.
  5. The Provider’s liability under this indemnity is limited under clause 14.

16. Force Majeure Event

  1. The Provider will not be in breach of these Terms and Conditions or liable to the other party for any Loss incurred by that other party as a direct result of the Provider failing or being prevented, hindered or delayed in the performance of its obligations under these Terms and Conditions where such prevention, hindrance or delay results from a Force Majeure Event.
  2. If a Force Majeure Event occurs, the Provider must notify the Client in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
  3. On providing the notice in clause 16.2, the Provider will have the time for performance of the affected obligations extended for a period equivalent to the period during which performance has been delayed, hindered or prevented, however, the Provider must continue to use all reasonable endeavours to perform those obligations.
  4. The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.

17. Termination and Suspension

  1. Termination by the Client
    1. The Client may terminate these Terms and Conditions at any time without cause by giving one months’ written notice to the Provider of its intention to terminate.
    2. The Client may terminate these Terms and Conditions with immediate effect, where:
      1. the Provider breaches any term of these Terms and Conditions and fails to rectify that breach within a reason time (being no less than 14 days) from being given notice by the Client;
      2. the Provider suffers an Insolvency Event.
    3. Where termination occurs by clause 17.1(b) the Provider will offer a pro-rata refund to the Client for the remainder of the subscription term during which termination took place. This is the sole remedy available to the Client.
  2. Provider’s right to terminate, suspend or restrict
    1. The Provider may terminate these Terms and Conditions or the Provider’s Account at any time without cause. Except as set out under clause 17.2(b), if the Provider terminates these Terms and Conditions, the Client will be able to access the Software for the remainder of the Client’s licence subscription.
    2. The Provider may immediately suspend, restrict or terminate these Terms and Conditions and/or the Client’s (and the Client’s Authorised Users’) access to all or part of the Services, including access to the Client Data on the Software immediately where:
      1. it is reasonably necessary for security, technical, copyright or operational reasons;
      2. the Client breaches any term of these Terms and Conditions;
      3. the Client violates the rights of any third party or the Provider;
      4. the Provider reasonably believes that the Client is engaged in illegal or fraudulent use of the Services;
      5. the Provider reasonably believes that the Client Data is inappropriate or unlawful;
      6. the Provider reasonably believes that the Client is using the Services in a way that would cause Loss or damage to or otherwise cause legal liability to the Provider, other users, third parties or disrupt others’ use of the Services; or
      7. the Client suffers an Insolvency Event.
    3. The Provider may only offer a pro-rata refund if the Provider terminates during a licence subscription under clauses 17.2(b)(i) at no fault of the Client. Otherwise no pro-rata refund will be provided.

18. Effects of termination

  1. On termination of these Terms and Conditions:
    1. the licence to use the Software is revoked and the Client’s access will be terminated;
    2. the Client must cease using, and must ensure its Authorised Users cease using the Software or any embed codes as they relate to the Software, and must uninstall and delete all instances of the Software (including all source code, databases and libraries connected with the Software) and any data that embodies the Intellectual Property Rights of the Provider, including from any backups, promptly in accordance with the Provider’s directions; and
    3. all amounts payable by the Client to the Provider (including amounts that are not yet due) shall become immediately due and payable and must be paid within 7 days of termination without set-off or counter claim (there is to be no pro-rata refund for a part month).
  2. Any clause of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

19. Confidentiality and Privacy

  1. Confidential Information
    1. The parties undertake that they and their respective personnel will not, without the prior written consent of the other party:
      1. disclose the Confidential Information of the other party to any person; or
      2. use the Confidential Information of the other party for their own or a third party’s benefit.
    2. Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of these Terms and Conditions.
    3. If requested by either party the other party must return all Confidential Information and any copies of the Confidential Information to the other party.
    4. In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
    5. In the event of a breach or threatened breach of the terms of this clause by either party (Breaching Party), the other party will, as between the parties, be entitled to an injunction restraining the Breaching Party from committing any breach of this clause without showing or proving actual damage sustained or likely to be sustained by the party.
  2. Privacy
    1. In respect of any Personal Information (as defined in the Privacy Legislation) that is included in Client Data or otherwise provided to, collected or received by either party in connection with the Software, the Client must comply with:
      1. the Privacy Legislation (as it applies to that party); and
      2. the applicable Policies and guidelines of the Provider as made known from time to time.
    2. The Client warrants and represents that:
      1. it has the right to use the Client Data, and that it is obtained all necessary consents and authorities on behalf of any third party (including any NDIS Participant) for the Provider to collect, store and use personal information (including sensitive information) of that third party (including any NDIS Participant) in accordance with these Terms and Conditions;
      2. the Client Data and the use of the Client Data by the Provider/Software is not in violation of any Privacy Legislation and Applicable Law; and
      3. all Personal Information that it provides to the Provider complies with this clause and these Terms and Conditions at all times. Immediately upon the Client becoming aware of any breach by it of any Privacy Legislation in respect of Personal Information provided to the Provider, the Client must inform the Provider of this.
    3. If either party receives a request for access to or correction of any Personal Information from any person (including the Office of the Australian Information Commissioner) prior to providing such access to or correcting the information it must notify the other party.

20. Notices

  1. All notices authorised or required under these Terms and Conditions to be given by a party to the other shall be in writing sent by email or delivered personally or sent by pre-paid registered post and in each case addressed to the other party at that party’s Address for Service.
  2. The following shall constitute proof of receipt:
    1. proof by posting by registered post; or
    2. proof of dispatch by email.
  3. Receipt of a notice given under these Terms and Conditions will be deemed to occur:
    1. in the case of a communication sent by pre-paid registered post, on the third business day after posting;
    2. in the case of an email, on the business day immediately following the day of dispatch.
  4. If a notice is sent via post, it must also be sent via email.

21. General Provisions

  1. Variation
    An amendment or variation of any term of these Terms and Conditions must be in writing and signed by each party.
  2. No Waiver
    1. No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms and Conditions unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
    2. Words or conduct referred to in clause 21.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
  3. Assignment, Novation and Other Dealings
    1. The Provider may assign or novate any rights that arise out of or under these Terms and Conditions without the consent of the Client.
    2. Any rights of the Client that arise out of or under these Terms and Conditions are not assignable or capable of novation by the Client without the prior written consent of the Provider, whose consent must not be unreasonably withheld.
  4. Counterparts
    These Terms and Conditions may be executed in any number of counterparts. All counterparts taken together constitute one instrument. A party may execute these Terms and Conditions by signing any counterpart. The date on which the last counterpart is executed is the date of these Terms and Conditions. Communication of the fact of execution to the other parties may be made by sending evidence of execution by email.
  5. Costs
    The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms and Conditions.
  6. Severability
    1. If the whole or any part of a provision of these Terms and Conditions is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
    2. Clause 21.6(a) does not apply if the severance of a provision of these Terms and Conditions in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms and Conditions.
  7. No Merger
    1. On completion or termination of these Terms and Conditions, the rights and obligations of the parties set out in these Terms and Conditions will not merge and any provision that has not been fulfilled remains in force.
  8. Survival
    1. Any clause which by its nature is intended to survive termination or expiry of these Terms and Conditions will survive such termination or expiry.
  9. Further Action
    1. Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and Conditions and the transactions contemplated by these Terms and Conditions.
  10. Time of the Essence
    Time is of the essence in these Terms and Conditions in respect of any date or time period and any obligation to pay money.
  11. Relationship of the Parties
    1. Nothing in these Terms and Conditions gives a party authority to bind any other party in any way.
    2. Nothing in these Terms and Conditions imposes any fiduciary duties on a party in relation to any other party.
  12. Remedies Cumulative
    Except as provided in these Terms and Conditions and permitted by law, the rights, powers and remedies provided in these Terms and Conditions are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms and Conditions.
  13. Entire agreement<
    These Terms and Conditions states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
  14. No Reliance
    No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms and Conditions.
  15. Governing Law and Jurisdiction
    1. These Terms and Conditions is governed by the law in force in the State.
    2. Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms and Conditions.
    3. Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 21.15(b) on the basis that:
      1. any proceeding arising out of or in connection with these Terms and Conditions has been brought in an inconvenient forum; or
      2. the courts described in clause 21.15(b) do not have jurisdiction.
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